Relist (and Hold) watch

Posted Wed, October 12th, 2011 10:45 am by John Elwood

John Elwood reviews Tuesday’s relisted and held cases.

If you are one of the two people who read last week’s installment, you are already about ninety percent up to speed on this week’s relists and you can stop reading now. With a few exceptions, all of last week’s relists have been relisted once again.

The happiest exception (at least for Alex Blueford) is Blueford v. Arkansas, 10-1320, which presents the question whether the Double Jeopardy Clause bars reprosecution for a greater offense if a jury deadlocks on a lesser-included offense and announces that it has voted against guilt on the greater offense; the Court granted in that case. (And the Court now appears to be holding Harrison v. Gillespie, 11-168, for Blueford.) Also happy news for Acting Warden Brenda Cash in Cash v. Maxwell, 10-1548, the petition alleging the Ninth Circuit gave insufficient deference to the state court under the Antiterrorism and Effective Death Penalty Act (“AEDPA”); the Court not only relisted again, but it also called for the record, suggesting that this case is now a more serious candidate for the state’s requested relief of summary reversal.

Bad news came for petitioners in two capital cases, Rocha v. Thaler, 10-9659, and Adams v. Thaler, 10-10881, both raising questions involving alleged adequate and independent state grounds to support a state-court judgment (and thus to preclude federal habeas relief); the Court denied without comment in both. And bad news for Arizona in Ryan v. Doody, 11-175, the AEDPA case involving a man convicted of killing nine people at a Buddhist temple, in which the state sought summary reversal of the Ninth Circuit; denial of cert. there as well, but Justice Alito noted that he would have granted the petition.

The judgment in Johnson v. Obama, 10-10652, which involved questions about the propriety of a judge presiding over a case in which she was a named defendant, was summarily affirmed: because eight of the nine Justices were named defendants in the case, the order list noted, “the Court lacks a quorum,” and Justice Kagan, “the only qualified Justice,” was “of the opinion that the case cannot be heard and determined at the next term of the Court.” Thus, the judgment was summarily affirmed under 28 U.S.C. § 2109.

There was one new relist. Elgin v. Department of the Treasury, 11-45, presents the question whether the Civil Service Reform Act impliedly precludes federal district courts from having jurisdiction over constitutional claims for equitable relief brought by federal employees. The government seems to acknowledge that the Third and D.C. Circuits take a different approach than the majority of circuits, but it says that this isn’t an appropriate vehicle for resolving the alleged conflict.

The Court appears to be holding Derry v. Florida, 10-1488, which involves an alleged violation of Brady v. Maryland, 373 U.S. 73 (1963). The Court may be holding it for Smith v. Cain, 10-8145. And the Court also appears to be holding Rosa v. United States, 11-5141, which involves whether the good-faith exception to the Fourth Amendment exclusionary rule applies when a search warrant fails to describe with particularity the items to be searched and seized but such information is contained in the warrant affidavit and application; the Court may be holding it for Messerschmidt v. Millender, 10-704.

Finally, I neglected to note last week that the Court relisted yet again in the “shaken baby” case, Cavazos v. Smith, 10-1115, whose frequent relists last Term are noted here, here, here, here, here, here, here, and here. It is yet another case in which a state argues that the Ninth Circuit exceeded its authority by granting relief under the AEDPA. The Court requested the record from the Ninth Circuit and from the district court back in May. It is very curious that the Court is still hanging on to the case.

If a case has been relisted once, it generally means that the Court is paying close attention to the case, and the chances of a grant are higher than for an average case. But once a case has been relisted more than twice, it is generally no longer a likely candidate for plenary review, and is more likely to result in a summary reversal or a dissent from the denial of cert.

I’ll be in trial in Madison, Wisconsin, for the next two weeks, so the edition after the October 14 conference will likely be delayed.

Elgin v. Department of the Treasury (relisted after the 10/7 Conference)

Issue(s): Whether the Civil Service Reform Act of 1978, 5 U.S.C. § 1101 et seq., precludes petitioners from seeking equitable relief in district court based on allegations that they were unconstitutionally terminated from fed­eral employment.

Issue(s): (1) Which Establishment Clause test should be applied when analyzing passive public displays; (2) does the Establishment Clause forbid roadside memorial crosses marking the site of death for state highway troopers killed in the line of duty; and (3) is a collection of memorials owned by a private organization, disclaimed by the state, and located on both private and public property properly classified as government speech?

Issue(s): (1) What is the appropriate test for evaluating whether a passive display with religious imagery violates the Establishment Clause; (2) whether this Court should set aside the “endorsement test” in favor of the “coercion test”; and (3) whether a memorial cross placed on state land by a private organization to commemorate fallen state troopers is an unconstitutional establishment of religion.

Issue(s): Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Issue(s): Whether imposing a sentence of life without possibility of parole on an offender who was fourteen at the time he committed capital murder constitutes cruel and unusual punishment in violation of the Eighth Amendment.

Issue(s): Whether the U.S. District Court for the Northern Mariana Islands has jurisdiction to hear criminal cases arising under the laws of the United States, because its judges do not enjoy the protections of Article III of the Constitution.

Issue(s): (1) Whether the defendant’s race or ethnic background was used impermissibly as an aggravating circumstance in the punishment phase of a capital murder trial; (2) whether the defendant’s race was used as evidence of future dangerousness during the punishment phase of a capital murder trial; (3) whether a reasonable jurist could believe this case presents extraordinary circumstances justifying reopening federal habeas corpus proceedings under Fed. R. Civ. P. 60(b)(6); (4) whether a reasonable jurist could believe that the Texas Attorney General made material misrepresentations that constitute a fraud on the court; (5) whether imposition of the death penalty in this case was arbitrary and capricious.

Issue(s): Whether the court of appeals erred in finding no reversible plain error in petitioner’s sentence, where the sentence imposed was within the advisory Guidelines range used by the district court and would also have fallen within the range that petitioner contends is correct.

Issue(s): (1) Whether the issue of corporate civil tort liability under the Alien Tort Statute (ATS), 28 U.S.C. § 1350, is a merits question or instead an issue of subject matter jurisdiction; and (2) whether corporations are immune from tort liability for violations of the law of nations such as torture, extrajudicial executions or genocide, or if corporations may instead be sued in the same manner as any other private party defendant under the ATS for such egregious violations.

Issue(s): Whether the United States may be barred from enforcing the Nonintercourse Act against a state that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the Act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into the hands of third parties, when the United States seeks monetary relief only against the state.

Issue(s): (1) Whether the court of appeals contravened this Court’s decisions in Oneida Indian Nation of New York v. County of Oneida and City of Sherrill v. Oneida Indian Nation by ruling that “equitable considerations” rendered petitioners’ claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio; and (2) whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on “equitable considerations” to bar petitioners’ claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue.

Issue(s): Did the Ninth Circuit exceed its authority under 28 U.S.C. § 2254(d) by granting relief for insufficient evidence based on its acceptance of the cause-of-death testimony of defense experts over the contrary opinion testimony of prosecution experts?

Issue(s): (1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Issue(s): Whether the court of appeals violated 28 U.S.C. § 2254 and Supreme Court precedent by overriding state court determinations of law and fact and awarding habeas relief based on a constitutional rule that this Court has never recognized and that the Seventh Circuit derived entirely from its own precedent.

Issue(s): (1) Whether the Sixth Circuit contravened the directives of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) when it abandoned the “in custody” requirement of Miranda v. Arizona and Edwards v. Arizona; (2) whether the interviewer’s state of mind has any bearing on whether a suspect’s statement is voluntary under the established law of Oregon v. Elstad; and (3) whether the Sixth Circuit exceeded its authority under AEDPA when it condemned the use of the “prisoner’s dilemma”—where the police indicate that favorable treatment will go to the first suspect who cooperates—as an unconstitutionally coercive interrogation tactic.

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